Ireland: Financial Regulatory Group Briefing - Vol 3, January 2013

Last Updated: 15 January 2013
Article by Orla O'Connor and Robert Cain

This is the third edition of RegBrief, the quarterly bulletin of the Arthur Cox Financial Regulatory Group. RegBrief contains a summary of certain developments and is neither a complete nor a definitive statement of law or of regulation. Specific legal advice should be obtained before taking any action.

Irish Regulatory Developments

The Central Bank's 2013 Strategy

The Central Bank published its Strategic Plan 2013-2015 on 20 November 2012 in which it confirmed that, in 2013, it would establish an Implementation Advisory Committee to enable consultation on the detailed implementation of the Central Bank (Supervision and Enforcement) Bill (currently at Committee stage in the Dail), develop an operational framework for whistle-blowers and put in place a redress and restitution scheme. It stated that it would continue to review compliance with the Code of Conduct on Mortgage Arrears ("CCMA") and that 2013 would see a review of the CCMA, together with reviews of the Code of Conduct on Business Lending to Small and Medium Enterprises and the Account Switching Code. A new code for debt management/bill payment companies will also be developed, as will a revised Client Assets Regime (following the publication of the Review of the Regulatory Regime for the Safeguarding of Client Assets in 2012). A list of the themed inspections that the Central Bank plans to conduct in 2013 will be published early this year, and key focus areas for the year ahead will include a review of PRISM (the Probability Risk and Impact System), the restructuring and resolution of the credit union sector, mortgage arrears and the delivery of longer-term sustainable solutions under the Mortgage Arrears Resolution Strategies developed by lenders, the management and resolution of distressed SME loans, the next PCAR (Prudential Capital Assessment Review) assessments and the implementation of European legislative proposals such as MiFID II and the Alternative Investment Fund Managers Directive ("AIFMD").

Anti-Money-Laundering

The Central Bank wrote to all Irish-regulated credit institutions and financial institutions on 18 October 2012 regarding compliance with the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (the "2010 Act") noting certain key control failures that it had identified. These control failures included delays in implementing measures to ensure compliance, a lack of oversight where compliance with the 2010 Act had been delegated by the relevant board, an inability on the part of firms who purported to apply a risk-based approach to demonstrate how they had evaluated specific risks arising, material gaps in policies, failures to provide training, varied types of failures to conduct appropriate customer due diligence and failure to file suspicious transaction reports within stipulated time-frames. The Central Bank noted its expectation that firms would review their policies and procedures and address any shortcomings. October 2012 also saw the publication by the Department of Finance of guidance on the prevention of the use of the financial system for the purpose of money-laundering and terrorist financing in the life assurance sector on its website.

Payment Protection Insurance

On 8 October 2012, the Central Bank named six institutions which had commenced reviews of their sales of payment protection insurance ("PPI") policies since August 2007 as part of the Central Bank's ongoing investigation into the sale of PPI policies. The Central Bank noted that it was also considering enforcement action as part of that investigation.

Intermediary Times

In its recent edition of 'Intermediary Times', the Central Bank outlined its concerns regarding the practice of regulated retail intermediary firms engaging in unregulated activities within the same business entity. Regulated intermediaries were asked to consider their business models carefully to determine whether engaging in unregulated activities was appropriate, and to also consider the related risks such as capital/solvency and professional indemnity insurance. The Central Bank stated that it would be undertaking a themed inspection on the capital and solvency requirements of retail intermediaries in the near future and noted that an investment intermediary found to be in breach of its regulatory capital requirements would be directed to prepare a credible capital plan, agreed by all directors, partners and principals as to how it would return itself to a compliant position (which plan will have to be the subject of an auditor's opinion as to its reasonableness).

Consultations

The last quarter of 2012 saw the publication by the Central Bank of its Policy on Consultations together with a Consultation Protocol for Credit Unions. On 29 October 2012, the Central Bank announced that it would be initiating a consultation on the Irish regulatory regime for non-UCITS funds, outlining changes to be introduced in connection with the implementation of the AIFMD in July 2013. The Briefing issued by the Arthur Cox Asset Management and Investment Funds Group on that consultation is available here. On 20 November 2012, the Central Bank also published a consultation paper on proposed changes to the basis for calculating the industry funding levy payable by regulated entities, designed to more closely align the funding levies paid by regulated entities with the costs of their supervision. It is proposed that there will be a single levy rate per impact category within each industry category.

Further, the Central Bank proposes to introduce application fees for firms seeking authorisation to provide financial services which will reflect the average cost involved in processing applications. It was noted in the Central Bank's press release that the European Central Bank ("ECB") is currently considering the funding of the cost of regulation of credit institutions authorised within the Eurozone as part of the Single Supervisory Mechanism proposals (discussed later in this Briefing) which may impact the Central Bank's levy-calculation process. The consultation period will close on 22 February 2013, with the proposed changes to be introduced later in 2013.

Irish Legal Developments

The Personal Insolvency Bill 2012 completed its passage through both Houses of the Oireachtas on 19 December 2012, and was signed into law as the Personal Insolvency Act 2012 on 26 December 2012. A copy of the Arthur Cox Finance Group Briefing on the new Act is available here, and signing of the relevant commencement order(s) by the Minister for Justice is awaited. The Credit Union and Cooperation with Overseas Regulators Act 2012 was signed into Irish law on 19 December 2012, with the majority of the provisions of that Act commenced by way of Statutory Instrument with effect from the same date. 1 January 2013 was confirmed as being the establishment day for the Credit Union Restructuring Board.

The Credit Reporting Bill 2012 has yet to go before Committee stage in the Dáil, but is expected to do so shortly. The Central Bank (Supervision and Enforcement) Bill 2011 is also expected to progress in the early part of 2013.

On 14 December 2012 the Minister for Finance put a motion before Dáil Eireann that the period of effectiveness of the Credit Institutions (Stabilisation) Act 2010 be extended by 24 months from 31 December 2012 to 31 December 2014. That motion was approved by Dáil Eireann on 14 December 2012 and by Seanad Eireann on 18 December 2012 with the result that this extension has now come into effect.

As part of the Seventh Update to the Memorandum of Understanding on Specific Economic Policy Conditionality, published in December 2012 as part of the EU/IMF Programme of Financial Support for Ireland, the Irish Government is now required to remedy the legal difficulties regarding repossessions of registered land which first became apparent following the 2011 High Court decision in Start Mortgages Ltd v. Gunn [2011] IEHC 275 by the end of the first quarter of 2013 in a manner which removes "...the unintended constraints on banks to realise the value of loan collateral under certain circumstances".

In early December 2012, the European Commission formally granted approval for the extension of the Eligible Liabilities Guarantee Scheme to 30 June 2013. On 14 December 2012, the Government provided for a further amendment by extending the Scheme period to 31 December 2013 (subject to continuing EU state aid approval).

Miscellaneous relevant legislation introduced during the last quarter of 2012 included the European Communities (Cooperation between National Authorities responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2012 (which take into account several repeals and replacements of legislative acts referred to in Regulation (EC) No. 2006/2004 (the Regulation on Consumer Protection Cooperation)), the Housing (Local Authority Loans) Regulations 2012, which update previous regulations to take account of mortgage arrears guidelines issued to local authorities in June 2012 and the Central Bank Reform Act 2010 (Application of Part 3 to Credit Unions) Order 2012.

The Minister for Finance also issued a consultation (which closed to responses on 22 November 2012) on the draft Credit Union Act 1997 (Section 182(1)(j)) Regulations 2012. Under Section 182(1)(j) Credit Union Act 1997, the Minister may make regulations providing for the inspection, and furnishing of copies, of documents in the custody of the Central Bank.

Key European Developments

European Commission Work Programme

The European Commission (the "Commission") outlined its 2013 Work Programme on 23 October 2012. It referred to various possible or proposed initiatives for 2013 including a legislative or non-legislative bank account initiative aimed at increasing the transparency and comparability of bank account fees, a legislative initiative following the Commission's January 2012 Green Paper on an integrated European market for card, internet and mobile payments to address the main obstacles for market integration in those areas and a legislative initiative to address the systemic risks relating to shadow banking. Another initiative listed for publication in 2013 or 2014 included a legislative initiative to have a common framework for the production of indices and benchmarks.

Liikanen report on EU banking sector structural reforms

On 2 October 2012, the Commission published the final report of the high-level group on reforming the structure of the European Union's banking sector chaired by Erkki Liikanen. The group had been mandated by the Commission to assess whether additional reforms directly targeted at the structure of individual banks would further reduce the probability and impact of failure, ensure the continuation of vital economic functions upon failure and better protect vulnerable retail clients. In the report, the group recommended a number of steps including:

  • mandatory separation of proprietary trading activities and other significant trading activities
  • allowing supervisors to require banks to separate further activities, if considered necessary to ensure resolvability
  • amending the bail-in proposals made in the Commission's June 2012 proposal for a Resolution and Recovery Directive
  • changing banks' capital requirements, in particular as regards trading assets and real estate related loans
  • reforming banks' governance arrangements, including bankers' variable remuneration

On 3 October 2012, the Commission published a webpage seeking views on the final Liikanen Report stating that the consultation was part of its process for assessing the group's report and recommendations (it has not published a separate consultation).

Single Supervisory Mechanism ("SSM")

Agreement was reached by the Council of the EU (the "Council") on 13 December 2012, and it will now be considered by the European Parliament (the "Parliament") between 4 and 7 February 2013. It is expected that the ECB will assume its supervisory tasks within the SSM on 1 March 2014 or 12 months after the entry into force of the relevant legislation, whichever is later, subject to operational arrangements.

CRD IV (the proposal to replace the current Capital Requirements Directives (2006/48/ EC and 2006/49/EC) with a directive on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, and a regulation on prudential requirements for credit institutions and investment firms)

This is now expected to be considered by the Parliament at its 11-14 March 2013 session. On 26 November 2012, the European Banking Federation formally requested a delay of one year to the introduction of CRD IV on the grounds that EU banks would be at a competitive disadvantage if the new rules are introduced in the EU before their US counterparts have to comply with the equivalent rules in the US. The European Banking Authority ("EBA") also wrote to the relevant Commissioner to express concerns in connection with the definition of own funds following amendments to the text of the regulation and the application of transitional floors to capital requirements.

MiFID II (the proposal to replace MiFID with a new directive and a related regulation which will also amend the European Market Infrastructure Regulation)

The date for agreement on the texts of the directive and regulation which comprise MiFID II is now less clear following the vote by the Parliament on certain amendments held on 26 October 2012 and the subsequent referral of the texts of both the directive and regulation back to Parliament's Committee on Economic and Monetary Affairs. The Council Presidency published its progress report on 17 December 2012 inviting the incoming Irish Presidency to continue to work on the basis of the current Presidency's compromise proposals dated 3 December 2012. Issues highlighted by the Council as perhaps requiring further discussion included organised trading facilities, nondiscriminatory clearing access for financial instruments and pre-trade and post-trade transparency.

MAD II (the proposed regulation on insider dealing and market manipulation and proposed directive on criminal sanctions for insider dealing and market manipulation)

European Justice Ministers have agreed the Commission's proposals on the draft directive including the proposal to criminalise the manipulation of benchmarks following the LIBOR scandal. The next step will be for negotiations to take place with the Parliament, which has indicated that it will consider these proposals between 20 and 23 May 2013.

CRA III (the proposed regulation in relation to credit rating agencies and proposed directive amending the UCITS IV Directive (2009/65/EC) and the AIFMD (2011/61/EU) to reduce overreliance on external ratings by fund managers)

These reforms are expected to be considered by the Parliament between 14 and 17 January 2013. CRA III is designed to reduce reliance on ratings and, as a result, references to "external ratings" in European Union law will need to be checked to see whether they trigger automatic reactions to ratings and, if so, these references will have to be deleted by 2020 subject to appropriate alternatives to credit risk assessment being identified and implemented. CRA III also includes provisions to ensure that conflicts of interest do not impair the quality of ratings and imposes limits on cross-shareholdings. It should be noted that a Delegated Regulation on fines for Credit Rating Agencies (946/2012) was also published in the Official Journal on 16 October 2012 and deals with the powers of the European Securities and Markets Authority ("ESMA") to impose fines on credit rating agencies when they breach EU legislation. The delegated regulation includes a full list of infringements that, if committed by a credit rating agency, may trigger fines including conflicts of interest, obstacles to supervisory activities or non-disclosure of certain information.

ESMA

On 1 October 2012, ESMA published its 2013 Work Programme and its 2013-2015 Multi-Annual Work Programme in which it identified its priority areas for 2013 as including MiFID II and MAD II (together with work on technical standards or advice to the Commission on delegated acts), launching supervision of trade repositories and co-ordination of supervisory colleges for central counterparties required under the European Market Infrastructure Regulation (Regulation 648/2012) ("EMIR"), ongoing supervision of credit rating agencies, the implementation of CRA III and work relating to both AIFMD and the proposed UCITS V Directive.

Short Selling Regulation (Regulation 236/2012)

This came into force on 1 November 2012 together with two additional Commission Delegated Regulations (Commission Delegated Regulation (EU) No 918/2012 of 5 July 2012 supplementing the Short Selling Regulation with regard to definitions, the calculation of net short positions, covered sovereign credit default swaps, notification thresholds, liquidity thresholds for suspending restrictions, significant falls in the value of financial instruments and adverse events and Commission Regulation (EU) No 919/2012 of 5 July 2012 supplementing the Short Selling Regulation with regard to regulatory technical standards for the method of calculation of the fall in value for liquid shares and other financial instruments). ESMA has also published a list of exempted shares under the Short Selling Regulation in accordance with the requirement, under Article 16(2), that it publish every 2 years a list of shares for which the principal trading venue is located in a third country, and has been keeping its Q&A document updated. It published preliminary notification thresholds for short positions in sovereign debt and was expected to publish definitive figures by 1 November 2012 but has not yet done so. ESMA has also published two lists of links to national websites on the notification and disclosure of net short positions (some of the links are not, however, operational yet). Information on the Central Bank's application of the Short Selling Regulation is available on its website.

Regulation regarding Packaged Retail Investment Products

The dates for the consideration of this regulation by Parliament have been changed to 20-23 May 2013 following publication of the proposal in July 2012. A Presidency compromise text was published on 27 November 2012 and the European Data Protection Supervisor has also published its opinion in this regard.

Consumer Credit Directive (Directive 2008/48/EC) ("CCD")

On 8 November 2012, Parliament's Internal Market and Consumer Protection Committee published its October 2012 report on the implementation of CCD, calling on the Commission to review the manner in which CCD was transposed and to urge Member States to apply it correctly. The Committee did not consider it necessary to revise CCD at this stage. On 20 November 2012, Parliament published its resolution on the implementation of the CCD, also emphasising that it did not see a need to revise the CCD now, but that priority should be given to ensuring that it is correctly transposed and enforced. Parliament called on the Commission to present an assessment report on CCD implementation, taking into account the consequences of the financial crisis and the new EU legal framework for financial services.

Single European Payments Area ("SEPA")

On 25 October 2012, the ECB published a factsheet in relation to SEPA migration, setting out key dates. The EBA had already published a guide on 11 October 2012 designed to support payment service providers in their preparation for the SEPA Regulation 260/2012. On 30 November 2012, the European Payments Council published a number of documents regarding revisions to its SEPA direct debit and credit transfer rulebooks including new versions of the SEPA Credit Transfer Rulebook, the SEPA Direct Debit Core Rulebook and the SEPA Direct Debit Business to Business Rulebook.

EMIR

On 14 November 2012, the Commission published FAQs designed to clarify the timing for obligations under EMIR to take effect, EMIR's scope and the position of third country central counterparties and trade repositories. The note accompanying these FAQs stated that the Commission would only publish answers to any questions relating to regulatory technical standards and implementing technical standards after the adoption of the standards by the Commission. On 19 December 2012, the Commission announced that it had adopted nine regulatory and implementing technical standards which would enter into force twenty days after their publication in the Official Journal and which will be directly applicable. Three Commission Implementing Regulations (1247/2012, 1248/2012 and 1249/2012) were published in the Official Journal on 21 December 2012. One technical standard (relating to colleges for central counterparties) was returned by the Commission to ESMA for re-drafting and will be considered at a later stage - this is not expected to cause a timing issue as the provisions of that particular technical standard are not a pre-requisite for central counterparties to begin applying for authorisation under EMIR.

Proposed Residential Mortgages Directive

This is now scheduled to be considered by the Parliament at its 20-23 May 2013 plenary session.

European Insurance and Occupational Pensions Authority ("EIOPA")

EIOPA published its work programme for 2013 on 8 October 2012 listing key deliverables that included finalising the standards and guidelines required under Solvency II, producing a supervisory handbook and a Q&A procedure, ongoing work regarding the proposed revised Insurance Mediation Directive ("IMD2") and drafting related technical standards.

IMD2

On 29 October 2012, Parliament published a working document dated 16 October 2012 on the proposed revisions to the Insurance Mediation Directive, produced by its Committee on Economic and Monetary Affairs. The working document provided a brief summary of IMD2 and raised a number of issues to be considered including:

  • whether the appraisal of claims should be included within its scope given that, from the perspective of policyholder protection, the interest is not immediately obvious
  • the technical difficulties arising from the provisions on conflicts of interest and transparency
  • whether insurance investment products are actually comparable with pure investment products, and should be subject to the same rules
  • whether a fee-based system for the mediation of insurance investment products translates into better advice to customers
  • the resources to be allocated to EIOPA to enable it to perform the tasks conferred on it under delegated acts

Parliament is to consider IMD2 at its plenary session from 20 to 23 May 2013. On 4 December 2012, EIOPA published a speech given by its Chairman which commented on the IMD2 proposal, welcoming IMD2 as supporting the Commission's objectives of making retail insurance markets work better and promoting a more level playing field among all activities, and noting the importance of ensuring that the final text creates a regulatory regime in the retail insurance market that can be effectively supervised both at both EU and national levels.

Omnibus II and Solvency II

On 30 November 2012, Parliament updated its procedure file to indicate that it would consider Omnibus II between 10 and 13 June 2013 (rather than November 2012 or 11-14 March 2013 as previously indicated). As Omnibus II amends Solvency II, the implementation of Solvency II looks certain to be delayed as a result.

Anti-Money-Laundering

The Commission has now indicated that it expects to publish the Fourth Money Laundering Directive in early 2013 (rather than in November 2012 as previously indicated) with a view to it being adopted at a European level by the end of 2013.

Financial Transaction Tax ("FTT")

11 countries have been approved by the European Parliament to introduce the FTT (Austria, Belgium, Estonia, France, Germany, Greece, Italy, Portugal, Slovakia, Slovenia and Spain). The Council now needs a qualified majority vote to allow the Commission to begin enhanced cooperation measures designed to put the FTT architecture in place. The Minister for Finance had signalled, in October 2012, that Ireland would not be participating.

Insolvency Regulation

On 12 December 2012, the Commission published its proposal to modernise the Insolvency Regulation (Council Regulation EC/1346/2000) following a public consultation in March 2012.

Commission consultation on a recovery and resolution framework for non-bank financial institutions

This consultation paper was published by the Commission on 5 October 2012, with responses requested by 29 December 2012. The institutions to which the consultation relates are financial markets infrastructures (central counterparties and central securities depositaries), insurance and reinsurance firms, payment systems such as TARGET2 and CHAPS and other non-bank entities such as payment institutions and electronic money institutions. The consultation focuses on how the failure of these types of institution could severely impact financial stability and examines how and when a non-bank financial institution might cause systemic problems by its failure. The Commission appears to be focussing on the recovery and resolution tools that might be applied to these institutions, rather than on imposition of further prudential or market conduct rules.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

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